Ordinances assert that it’s the executive that has the popular mandate, not the unrepresentative upper house in a democratic set-up, especially in a parliamentary form of government. This upper house in India is called Rajya Sabha and is shelter of failed politicians, retired bureaucrats and others hangers on to the government in power.
Insurance, coal, land acquisition – is the flurry of ordinances promulgated by the Narendra Modi government an aberration or a trend? While quick judgments would be unwise, it is just possible that India is at the cusp of a new model of executive-legislature negotiation. If so, the instrument of the ordinance is going to acquire a salience it has not had before.
As is obvious, NDA has a handsome majority in Lok Sabha but is in a minority in Rajya Sabha. This position is likely to be redressed in 2016 and more so in 2018, following Rajya Sabha elections in those years.
What happens in the interim? A taste of the challenge before the government came in the monsoon session, when a handful of MPs in Rajya Sabha did not allow the House to function and created conditions that made it impossible to vote on Bills the government deemed urgent.
In the case of the Insurance Bill in particular this made a mockery of the government’s Lok Sabha majority as well as the fact that both BJP and Congress (the largest parties in Rajya Sabha) were publicly supportive of the Bill. It also left the joint session threat in tatters.
On taking office, the NDA government had said it was more than willing to resort to joint sessions of Parliament to pass Bills. It would not be held back by the fact that joint sessions had hitherto been rare occurrences. A joint session can take place after one House passes a Bill and the other (essentially Rajya Sabha) rejects it or fails to take action on it for six months.
In the case of the Insurance Bill, the government had a legacy problem. The previous UPA government had introduced the Bill in Rajya Sabha, not Lok Sabha. Now with Rajya Sabha not passing the Bill and not rejecting it either, the government was stuck. Its Lok Sabha majority served no purpose. The insurance ordinance that has been promulgated is essentially a mirror image of the Insurance Bill already in Rajya Sabha. As things stand, this ordinance will now be introduced in Lok Sabha and be passed there. It will then go to Rajya Sabha. Rajya Sabha can pass, reject or not take action for six months on this version of the Insurance Bill. Following the latter two, a joint session will be called.
In effect, this four-stage process – ordinance; Lok Sabha passage; Rajya Sabha rejection/inaction; joint session – could become the norm for contentious Bills between now and at least 2016, if not longer. The danger of course is if Rajya Sabha continues to be disrupted and cannot meet in an orderly fashion, it will become a redundant House for the next few sessions of Parliament. It could lose its importance or ability to interrogate the executive.
True, the sledgehammer use of ordinances would reflect an innovation in Indian democratic practice. Ordinances were designed for genuine emergencies, not as regular legislative mechanisms. Yet, as the process of negotiating legislative passage becomes more and more complex, governments will increasingly test the frontiers of the Constitution and look for solutions provided there.
Ordinances are a sub-optimal way of legislating. They undermine the parliamentary process which is meant to represent interests of disparate groups. The absence of debate — for which, however, opposition parties are primarily responsible with their disruptionist tactics — is not going to improve the quality of legislation. Most ordinances in the last few weeks pertain to economic issues such as land acquisition. Their uncertain character inhibits investment and economic growth. Particularly when ordinances come in the wake of policy paralysis because even decisions made two decades ago were overturned in court.
If parliamentary process is to regain credibility, it is necessary for both government and opposition members to make an effort. In that sense, President Mukherjee has made a balanced intervention. Indians don’t send their representatives to Parliament to watch them disrupt it. Unfortunately, this problem has intensified over the years. For instance, the last Lok Sabha functioned for just over half the sittings of the first one.
The key question is why the government is unable to get legislation moving despite BJP being in the enviable position of enjoying an absolute majority in the Lok Sabha. Eternal parliamentary logjam will prevent India from realizing its true potential and short-circuit the democratic process itself. The upcoming budget session is a crucial one; both ruling and opposition parties must heed the president’s suggestion and sit together to find a way to avoid disruptions. The business of Parliament is important and must be taken seriously. And joint sittings of Parliament may have to be resorted to if legislation passed by the Lok Sabha is frequently stalled by the Rajya Sabha
In a sense, India is furthering its hybrid political model that is based on the Westminster system but borrows heavily from the executive-legislature relationship of the American system. In London, the House of Lords hardly has authority, its powers having been diminished a century ago. In Washington, DC, the president often finds himself at odds with Congress, both Houses of which may be run by a hostile party. In such situations, the executive has had to play hardball with the legislature, much as the Modi government is now doing with Rajya Sabha.
Take a precedent from the US in the 1960s. When anti-segregationist, civil rights legislation was stalled in Congress, the then president, Lyndon Baines Johnson, a Capitol Hill veteran, personally called in, cajoled, blackmailed and did deals with individual members of Congress to win their support. A good, moral law was passed using not-so-straightforward political tools.
Navigating parliamentary passage for Bills is not a picnic and, as such, as long as the Modi government doesn’t dive to the depths the UPA had to during the confidence vote in July 2008, it will have popular sanction. Neither does the Modi government face a policy credibility test with ordinances. An ordinance is a form of delegated legislation. When issued, it immediately becomes the law. Should it lapse, its provisions don’t necessarily get negated with retrospective effect.
Take the insurance ordinance, which raised the FDI cap from 26% to 49%. As per a Supreme Court ruling, an international insurance company that invests 49% in an Indian company while the ordinance is in place will not be penalized and will not have to surrender equity even if the ordinance lapses or is not ratified by Parliament. This actually strengthens the hands of the executive, and acknowledges the executive has the popular mandate, not Rajya Sabha. It ends up creating a window for Modi’s ordinance approach.